Whitney and Secretary, Department of Family and Community Services

[2005] AATA 231

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 231

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/500

GENERAL ADMINISTRATIVE DIVISION		)
Re		Mr Thomas Whitney

Applicant

And Secretary, Department of Family and Community services

Respondent

DECISION

Tribunal Ms N Bell, Senior Member

Date18 March 2005

PlaceSydney

DecisionThe Decision under review is set aside, and in substitution therefor the Tribunal decides that:

(i)The recovery of $8,241.30 from the Respondent between 6 February 1997 and 10 October 2002 was in accordance with the consent given by him to Centrelink.

...........................................

Ms N Bell
  Senior Member

SOCIAL SECURITY – Whether debt recovered by Centrelink was in full compliance with s1234A of the Social Security Act

Social Security Act 1991

REASONS FOR DECISION

18 March 2005 Ms N Bell, Senior Member

1.This is an application on behalf of the Secretary to the Department of Family and Community Services (“the Secretary”) contending that the recovery from Mr Thomas Whitney of part of a debt of pension, owed by the Estate of Mr Whitney’s mother, was correct on the basis of Mr Whitney’s agreement. The Secretary also contends that Mr Whitney agreed to Centrelink withholding part of his pension in payment of the debt until he withdrew his consent on 21 October 2002. The Secretary considers that the money ($8,241.30) was properly recovered under s1234A(1) of the Social Security Act 1991 (“the Act”). 

2.Mr Whitney’s mother, Marion Whitney, died on 31 October 1995.  However her Age Pension continued to be paid into her Commonwealth bank account until 9 January 1997 because, the Secretary contends, Centrelink was not advised of her death.  The Secretary stated that Centrelink only had its attention drawn to Mrs Whitney’s death when it received an enquiry from the Department of Housing, and it was only able to confirm Mrs Whitney’s death after a Field Officer, Mr Hitchen, visited Mrs Whitney’s address on 13 January 1997 and spoke to Mr Whitney.

the evidence before the tribunal

3.In evidence is a Statement penned by Mr Hitchen dated 13 January 1997, and signed by Mr Whitney, that included the following:

“When my mother died I took control of her Commonwealth Bank Keycard and withdrew monies that were paid into her account by the Department of Social Security.”

“I know the money I took from this account was not mine and I had no entitlement or authority to take it.”

“I acknowledge that I have received monies from Social Security that I had no entitlement to take and will repay all monies to Social Security that I withdrew from my mother’s account”

4.At the bottom of the Statement there is a sentence, written by Mr Whitney that says:

“I have read this statement and is [sic] true and correct”

Under this sentence, there is a signature that was identified by Mr Whitney as his own and is dated 13 January 1997.

5.Mr Hitchen, in his oral evidence to the Tribunal, said he could not specifically recall visiting Mr Whitney and had to rely on his usual practice as a Field Officer, employed since 1969.  Mr Hitchen also stated that he did not recognise Mr Whitney on the day of the Hearing. 

6.Mr Hitchen told the Tribunal that it was his usual practice to introduce himself and establish the identity of the person to be interviewed and indicate to the person that he needed to speak about a few matters.  Mr Hitchen would then ask questions, recording the answers in the form of a statement then ask that person to read their statement in full.  In addition, he said that he would always ask the person to read at least part of the statement aloud, so that he could be certain that the person could read and understand what was written.  It was then his usual practice to ask the person to acknowledge the statement, suggesting that they write something to the effect that the person found the statement to be true and correct and then sign it.  He would then witness that signature.

7.Mr Hitchen could not recall visiting Mr Whitney, and suggested that due to this fact, Mr Whitney was unlikely to have been visibly upset at his presence.  He stated that he made no contemporaneous record that suggested Mr Whitney was upset or aggressive, which would have been his usual practice.  Mr Hitchen told the Tribunal that if at any point someone asked him to leave their premises he would do so, upon the first request.

8.Mr Hitchen stated that on the following day he made an electronic file note of his visit with Mr Whitney.  The purpose of this electronic record was to report what happened, to note that he had carriage of the matter, and to indicate the result of the interview.  This file note indicates that Mr Whitney agreed to repay the monies he had taken from his mother’s account and agreed that this would be done by withholdings from his current pension. 

9.Mr Hitchen acknowledged that the statement signed by Mr Whitney did not include details of how the debt would be recovered, but that his electronic record did refer to withholdings being made.  He told the Tribunal that his usual method of broaching such a subject would be to tell the person that they have a debt and confirm the amount.  He stated that in his practice, the person usually responds by saying something like “how am I supposed to pay that?”, at which point Mr Hitchen would advise them that if they are in current receipt of a benefit, the easiest way is usually through agreeing to have amounts withheld from that benefit and advise them that the basic rate for withholding was 14%.  Mr Hitchen noted that he did not always advise the person being interviewed of this rate, but said that it would often come up in conversation.

10.Mr Whitney’s recollection of Mr Hitchen’s visit was in stark contrast to that of Mr Hitchen.  He told the Tribunal that prior to being visited he went into the Centrelink office at Parramatta and filled in a form that was about his mother’s death.  He remembered writing the date of her birth and her death and where she was living at the time.  He recalled being told by a Centrelink Officer that this was all he had to do.  Mr Whitney recalled that the Field Officer who visited him presented as a “well dressed hippy”, wearing a nice suit but sporting a long pony tail.  Mr Hitchen, in his oral evidence, said that he had never had long hair.  Mr Whitney said that he opened the door and was asked about his mother, and that his response was that she died more than 12 months ago.  He said that the person asked if they could come in and that Mr Whitney let him into the house. 

11.Mr Whitney said that once inside the house the Officer wanted to know if he would write the information about his mother down.  Mr Whitney’s reply was that he thought he had already done all he had to do.  He said that the Officer told him that he needed the information for his own records, which Mr Whitney said he felt “iffy” about as he had already visited a Centrelink office, and that there were no witnesses and he was being asked to write on an “unofficial piece of paper”.   He noted that he felt concerned that it was all a “set up”. 

12.Mr Whitney told the Tribunal that he flatly refused and asked the Officer to leave at least “20 or 30 times”, but he would not go.  He then heard sobbing and found his son in his bedroom and said that his son had wet himself through worry.  Mr Whitney said that at this point in time he just wanted to get rid of the Officer so he thought he would sign the paper.  He was asked to read the statement and read about two words before the Officer snatched the paper from him and said that was enough.  Mr Whitney said that he asked the Officer what that Statement said to which the Officer replied “it just says what you told me” and that it was for “his own file”.  He told the Tribunal that the Officer kept “pestering me” so he signed the paper.  Mr Whitney said that he did not speak to the Officer about payments.  He said that he had not been visited by anyone from Centrelink previously and did not receive another visit. 

13.Mr Whitney told the Tribunal that Mr Hitchnen did not look like the person who came to visit him, reiterating that the person who visited him had a very long pony tail. 

14.Mr Whitney said that he was not aware of the withholdings until he noticed the word “debt” on a Statement of Income that he obtained to attach to a Rent Rebate form on 21 October 2002.  Mr Whitney said that he usually just gave this form straight to the Department of Housing, but decided to go through it that time.  He said that he called Centrelink to find out what it was for and that Centrelink refused to tell him.  Mr Whitney told the Tribunal that he went into a Centrelink office and asked “can I get this thing stopped?” and was told that “once these things start, you can’t do anything”.  He stated that nobody would speak to him and that he didn’t feel as though anybody was listening to him until he spoke to the Social Security Appeals Tribunal and made a complaint to the Ombudsman. 

15.Mr Whitney said that the handwriting on the statement did look like his, but said he does not remember writing it.  He also acknowledged that the date on the statement was about the time the visit took place.  Mr Whitney stated that although he has been on the methadone program for a number of years, he was not on methadone at the time of the visit and that he was not using any drugs apart from smoking “a bit of marijuana”. 

16.Mr Whitney told the Tribunal that he never accessed his mother’s account, apart from when he had permission when she was alive.  He recalled his mother having a passbook and said that he had no idea that she had a keycard.  Mr Whitney noted that his house has been broken into a number of times over the last few years and that property has been stolen from him on these occasions. 

17.I asked Mr Whitney why five years passed before he noticed the withholdings from his social security payments.  He replied that he was of the understanding that the rate of pension received by males was different to that received by females and then noted that he would ring up from time to time to check his payments, but that every time he rang up, his call would get transferred and he would be told something different.

18.Mr Whitney was asked why the Department of Housing did not know about his mother’s death, to which he replied that they did know and that someone apologised to him about it.  He said that he was not lying and that he did not access his deceased mother’s account by using her keycard, and never accessed it after her death.  Mr Whitney reiterated that he did not read the whole of the statement written by Mr Hitchen and that he did not understand how the debt was going to be repaid, noting that this was not even discussed. 

19.Mr Whitney was taken to each of the letters written to him by Centrelink.  Letters that were progressive statements of debt, sent to Mr Whitney were dated as follows:

·14 April 1997;

·28 April 1997;

·27 October 1997;

·27 April 1998;

·27 October 1998;

·27 April 1999;

·27 October 1999;

·22 January 2002;

·2 April 2002;

·27 June 2002

20.Letters sent to Mr Whitney requesting the making of arrangements to continue repayment or notifying pension changes which mentioned the continuing debt recovery and his appeal rights, had the following dates:

·12 January 1998;

·4 March 1998;

·31 August 1998;

·11 May 1999;

·27 July 1999;

·31 May 2001.

21.Mr Whitney denied receiving any of these letters.  The only letters Mr Whitney told the Tribunal he had received were the undated first page of a letter, referring to his Freedom of Information request of 4 November 2002 and a printed copy of a Computer File Note dated 10 December 2002.  The file note is that of Mr Hitchen’s interview with Mr Whitney the day before.

22.Mr Whitney told the Tribunal that with the unfolding of these events, he has needed to see a Psychiatrist once a month and is taking anti-depressant medication.  He also told the Tribunal that he has had four strokes in the last six years and that he has been on a Methadone program for five years, noting that he hoped to be out of the program by August this year. 

consideration

23.It is for me to determine, whether the debt owed by Mrs Whitney’s estate and recovered from Mr Whitney, was recovered in accordance with the Act. Section 1234A (1) of the Act allows for recovery to be made by way of deductions from social security payments of a person who is not the debtor, provided the person consents to the deduction of “an amount”.  There is provision for consent to be made in a form other than writing and that consent to repay the debt may be revoked at any time. 

24.There is in evidence a statement signed by Mr Whitney agreeing to pay the debt attributable to his mother’s estate.  Also in evidence is a record, entered the following day, by Mr Hitchen, noting that Mr Whitney agreed to pay this debt through having amounts withheld from his pension payments. 

25.In contrast I note Mr Whitney’s oral evidence that although he did sign the Statement concerned, he was assured that its purpose was only to update the Department’s file, and that his priority, after speaking with Mr Hitchen, was to have him leave the premises.  I also note Mr Whitney’s contention that at no time, did a discussion take place about monies being deducted from his pension. 

26.The most reliable information before me, information not affected by the passage of time and its effect on memory, indicates that the debt outstanding by Mrs Whitney’s estate, a debt to the Commonwealth, was a debt that Mr Whitney agreed to repay, and that he indeed paid $8,241.30 of this debt, before withdrawing his consent almost five years later on 21 October 2002.  The numerous letters sent to Mr Whitney, to the correct addresses, although apparently not read by Mr Whitney, did advise him of the debt and its status, as well as providing information on repayment and his rights of appeal.  Unfortunately, Mr Whitney’s recollection of events is insufficient to displace the other evidence before me. 

27.A number of matters were raised in a written submission on Mr Whitney’s behalf, from the Welfare Rights Centre. The Welfare Rights Centre submitted there is no evidence to suggest that Mr Whitney was advised by a Centrelink officer that he could revoke his consent at any time (section 1234A(3)). There is no requirement in the Act that a consenting person must be advised that he or she may revoke the consent given. Nor is there a provision under which I may treat consent as never given when such advice is absent.

28.The Welfare Rights Centre also submitted that the use of the words “an amount” in section 1234A(1)(c) mean that the consent given must be to a specific sum to be deducted from the person’s benefit or pension. I do not think that reading a of the provision, allowing the words their ordinary meaning, gives rise to this requirement. I am even less inclined to find the meaning urged by the Welfare Rights Centre, given that the words that follow, describing what the Secretary may deduct, refer to “the amount” rather than to “that amount”.

29.Finally, the Welfare Rights Centre submitted that, although there is no requirement in section 1234A that a person’s consent be given in writing, that consent should be given in writing. I agree. However, given the absence of a requirement in the Act, I cannot disregard the oral consent to withholdings that is the subject of Mr Hitchen’s file note.

decision

30.The decision under review is set aside, and in substitution therefor, the Tribunal decides that:

(i)The recovery of $8,241.30 from the Respondent between 6 February 1997 and 10 October 2002 was in accordance with the consent given by him to Centrelink.

I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member

Signed:         .........[Linda Blue]...................................
  Associate

Date of Hearing  17 February 2005
Date of Decision  18 March 2005
Solicitor for the Applicant          Mr J Kenny